Vanderbilt Law, as part of its Dean’s Lecture Series, recently hosted constitutional law scholar Kate Shaw for a talk titled “Democracy After Dobbs.” The talk detailed the Dobbs v. Jackson Women’s Health Organization ruling and the many forms of direct democracy used in light of the decision. Shaw specifically emphasized how state mechanisms like ballot initiatives, which have historically been used to limit civil rights, are now been employed to protect reproductive freedom. She also highlighted how the history of direct democracy and its trends over time offers necessary context in the post-Dobbs era. The talk was hosted by The Office of Culture & Community and Women Law Students Association.
A constitutional law scholar at The University of Pennsylvania Carey Law School, Shaw’s work focuses on executive power, the law of democracy, the Supreme Court, as well as reproductive rights and justice.
She began by discussing how the Dobbs decision overturned Roe v. Wade and Planned Parenthood v. Casey and de-constitutionalized the right to abortion, “at least as a matter of constitutional law.”
“Alito grounded his opinion in claims about democracy, demanding the overruling of Roe so that the question of abortion regulation could be returned to the democratic process where it belonged; that is, the people and their representatives,” Shaw explained.
In light of this opinion, state legislatures almost immediately got to work, with many of them passing laws that either prohibited or protected abortion rights.
Shaw also elaborated on how citizens of each state have used direct democracy measures, particularly ballot initiatives and referenda, to register their views on reproductive healthcare. In these cases, she said that the direct democracy measures have largely protected the right to abortion.
“In states that allow direct democracy and where abortion has been on the ballot, voters have overwhelmingly, although not unanimously, voted in favor of reproductive freedom, preserving or expanding abortion access, and voting down efforts to restrict or curtail it,” Shaw said. “So for people opposed to and galvanized by the court’s removal of the abortion right after half a century, direct democracy seems full of promise.”
Shaw elaborated on how it is important to understand the full history, both the promise and the perils, of direct democracy. 
“It’s important to proceed with caution in regard to direct democracy’s deployment to secure reproductive rights,” she said.
Building on this claim, she discussed how the extent to which citizens can influence law and policy varies widely across states, and how states can limit direct democracy measures.
“There are front-end limits on the kind of measures that can be proposed via direct democracy,” Shaw said. “Most states have some version of a single subject rule, which says you can only just put one thing at a time in a particular proposal. States also impose different kinds of threshold limits on how much support you [must] have to get something [both] on the ballot [and] enacted into law.”
If a measure survives these front-end protections, there are back-end protections as well.
“On the back-end, states use different kinds of requirements for how much [support] is required,” Shaw said. “Most states use simple majority…but there are some states that impose supermajority requirements.”
There is also a long history of direct democracy being utilized to roll back certain Fourteenth Amendment protections, particularly during the civil and gay rights movements.
“In the late 1960s and 1970s, as integration gained steam, voters turned to direct democracy to register their objections to the pace and the methods of change,” Shaw said. “The success of direct democracy to counteract many of these civil rights gains provided a template for deploying direct democracy to resist the other burgeoning civil rights movements, including and importantly the gay rights movement.”
Shaw noted that while direct democracy was being used to limit the civil and gay rights movements, it was also simultaneously unsuccessful in limiting abortion access.
“In the 2000s and the 2010s, [the] more ambitious anti-abortion measures were largely unsuccessful when kind of channeled through the mechanism of direct democracy,” she said.
This phenomenon has continued after the Dobbs decision, with direct democracy being used to both strike down laws that restrict abortion access while being used to keep and even expand abortion access, even among highly conservative states and during off-cycle elections.
“Most recently, in November 2024, even as voters returned Donald Trump to the presidency, voters in 10 states cast their votes on various abortion-related measures, with abortion prevailing in seven of the 10, and a majority of voters supporting abortion protections in eight of the 10,” she explained.
Despite the relative success of direct democracy in protecting abortion access in the post-Dobbs era, Shaw highlights how knowing the history of how direct democracy has also marginalized equal protection is important.
“I do think it’s critical to work toward, right now, expanding access to direct democracy,” Shaw said. “To improve the conditions in which it is used, and shoring up the guardrails that prevent state officials from thwarting the meaningful use of direct democracy.
“But alongside this promise, I do think it’s in considerable peril, and so I think it’s important to kind of assess direct democracy within this new post-Dobbs era with eyes wide open.”
Watch a recording of Shaw’s talk below or on the Vanderbilt Law YouTube Channel.
